Duty of Care in Australia - Assignment Example

COMMERCIAL LAW Name: Course: Instructor: Institution: City: Date: Commercial Law Question 1 It is imperative that Chloe should explore a variety of remedies for her supposedly breach of contract. A breach of contract takes place in the event that a party fails in honoring their respective part of an agreement. Breach of contract may arise because of inadequacies in understanding obligations, incapacitation to honor an agreement, and lack of willingness to perform one’s duty as agreed upon in a contract. It is assumed that the contract between Chloe and the landlord is a bargain out of free will for the two parties. Additionally, I any viable and binding contract, several conditions must be fulfilled for remedies for breach of contract to be awarded to the non-breaching party (Willmott, Christensen, & Butler 2005, 15. The conditions which must be fulfilled for a binding agreement to arise between parties includes I. The presence of a conclusive agreement reached upon by parties involved in a contract II. The presence of intention towards performance and legally binding their agreement III. The passage of consideration(benefit) which usually in the form of money from the offerer to the offeree as a promise of meeting various demands within the agreement IV. The terms and conditions for performance of the agreement into by the parties should be certain and specific V. Parties must possess legal capacity to enter into an agreement VI. It must adhere to formal requirements VII. Parties must provide consent for entering into the agreement VIII. Privity of a contract should exist between the parties concerned IX. The contract must me legal in nature. The agreement between Chloe/Ellen and the landlord was mutually binding given that the two parties were privy to the engagement. In addition, the client indicated the intention to be bound legally by the contract when she visited the council office to establish the viability of the space of the property to undertake her business. Chloe/Ellen can be understood to be a victim of misrepresentation given that she was not told of any future activities, which brought about the failure of her business due to the noise and incapacity to cope with distress. It can be assumed that the council is responsible for fraudulent misrepresentation over the possibility of construction activities within the neighboring area next to the property in question. Furthermore, another argument is negligent misrepresentation, which accurately fits the description of the events in this case. The city council was in a “special relationship” with the landlord, which meant that it was their duty to provide Chloe/Ellen with accurate information over the possibility of future construction activity. The duty arises when: I. A person tasked with making a statement (city council and landlord) was expected to reasonably foresee that the party in question would rely on the information over possible construction in the nearby property that brought about the failure of the business and breach of contract. II. It was beyond reasonable doubt that the party was to relay on the information and circumstances for continued payment of rent arrears and business continuity. It can also be argued that the contract and misrepresentation of information due to negligence brought about an unconscionable dealing. The unconscionable dealing doctrine provides that I. A party was at a “special disadvantage” or disability II. The stronger party knew or ought to have known about the events, which brought about the breach of a contract III. The stronger party took advantage of the special disability or disadvantage in a manner that is not in conformity with good conscience The focus is usually the presence of procedural unconscionability as opposed to substance unconscionability that is brought about by unconscionable terms of an agreement. Unreasonableness in terms that place the weaker party at a disadvantage render an entire contract an unconscionable dealing. Thus it can be argued that Ellen/Chloe was unreasonable provided with misrepresented information that rendered her a weaker party. Furthermore, it becomes evident that the landlord, who is the stronger party in this case, also failed in ensuring that such events were disclosed given that they posed a risk to the overall health of Chloe/Ellen’s business. Furthermore, her disability because of misrepresented information rendered her unable to meet the obligations of paying contract and more so the failure of her business. Furthermore, it was the landlord’s duty to provide the client with adequate information given the nature of her business. It is also critical for her to note that the contract was breached because of frustration due to unforeseeable events, which beyond reasonable doubt impeded her capacity to execute her duty as provided within the contract. This can be provided in the Frustrated Contracts Act 1978 of Australia. Ellen/Chloe can illustrate beyond reasonable doubt that the property owner could have mitigated the losses incurred as result of misrepresented information delivered to her. The courts would be tasked with establishment of the presence of losses incurred by the plaintiff and if the defendant was liable for the damages. It is expressly evident that she is a a victim of misrepresentation given that she was not told of any future activities, which brought about the failure of her business due to the noise and incapacity to cope with distress. It can be assumed that the council is responsible for fraudulent misrepresentation over the possibility of construction activities within the neighboring area next to the property in question. Question 2 In understanding this incidence, it is critical to refer to Australian consumer laws and contract law clauses. Unequal bargaining power and limited bargaining opportunities for consumers are issues that provide an understanding of the position of Bob in purchasing a defective product that resulted in bodily harm. In the unequal bargaining power provides that consumers such as Bob, lack the resources and expertise to develop and sell products compared to large entities in this case Southern Knitting Mills and Clothes Galore. Limited bargaining opportunity notes that there are limited options for consumers to bargain for commodities given that consumers are provided with products and services on a fixed price basis. This incidence falls under the law of torts as per common law and general consumer protection legislation. There are two primary issues that should be addressed in this case namely fitness for purpose and merchantable quality of goods provided. Common law, through virtue of the law of torts provides that it the duty of manufacturers to ensure that they exercise reasonable care in production goods as well as delivery of services. This brings about the questions as to whether the manufacturers and retailers exercised a duty of care in ensuring safety of the clients through adequate caveat emptor over the state of the product and more so ensuring safety of the commodity. Statute Law provides that consumers have several distinct rights namely 1. Right to safety 2. Right to be informed 3. Right to chose 4. Right to be heard 5. Right to satisfaction of individual basic needs 6. Right to access redress 7. right to consumer education 8. right to healthy environment The case can be likened to Grant vs. Australian Knitting Mills [1936] AC 85that was critical to consumer law in Australia. The plaintiff noted that he contracted dermatitis that was brought about by the excess in the garment. The courts held that the retailers were duly liable for breach of warranty and condition in their contractual engagement with the client. The acts of the retailer contravened the implied warranty doctrine as provided in exceptions 1 and 2 of S. 14 in the South Australia Sale of Goods Act 1895, which is similar to S. 14 of English Sale of Goods Act 1893. Additionally, the incidence of Bob can also be likened to case of Donoghue v Stevenson whereby the defendant was held liable by the courts for breaching the duty of care to its clients through delivery of products that are deemed as fit for purpose(consumption) and more so of merchantable quality (Lunney, & Oliphant, 2013, 43). To understand this incident Bob should understand the two primary issues that he should bring up before the courts against the presumed defendants, Clothes Galore and Southern Knitting Mills. Product liability arises when there is proof of negligence. In this case the plaintiff is incapable of establishing the presence of sulphite in the garment, given that tests conducted were inclusive over the presence of the chemicals. It is noted that negligence should be established by inference of fact. The plaintiff should prove that the product was deficient and suffered from manufacturing defects. Thus, the plaintiff should focus on ensuring that an independent party undertakes a test of the garment to establish the presence of sulphite, which has been termed as the reason for contraction of dermatitis (Barker 2012, 39). Establishing the presence of sulphite as the course of dermatitis is critical towards developing a viable argument by the plaintiff. In this case, the primary aim is to establish the presence of a manufacturing defect to illustrate liability in terms of negligence by the manufacturer and retailers. In this case, the defendants can argue on the presence of a time lapse and thus the plaintiff should not rely on inference as well as the maxim res ipsa loquitur. The presence of sulphite in the wool after the manufacturing process can be assumed to be prima facie evidence in this case towards negligent conduct by the retailer and manufacturer (Kennedy 2009, 13). The manufacturer’s duty of care should have been exercised before the garment left the factory to ensure that all garments are free from sulphite and other chemicals that would result in bodily harm of the party. It is critical that Bob ensures he preserves his evidence given that this will be used for illustration of product liability and negligence by the defendants. It is also assumed that such proof must be adequate beyond reasonable doubt to illustrate the negligence. The courts can enforce remedies in the form of damages in favor of the plaintiff given that he suffered bodily harm, which is verifiable in a court of law (Pitel, Neyers, & Chamberlain 2003, 23). The ability to verify the bodily harm is critical to illustrate loss on part of Bob as a result of the negligence of the entity in ensuring a duty of care towards in consumers through adoption of qualitative mechanisms of ensuring safety and absence of chemicals that could harm the wellbeing of the consumers. Bibliography Barker, K., 2012. The law of torts in Australia. South Melbourne: Oxford University Press. Corones, S. G., 2011. The Australian consumer law, Rozelle, N.S.W: Thomson Reuters (Professional) Australia. Katter, N. A., 1999. Duty of care in Australia, Sydney: LBC Information Services. Kennedy, R., 2009. Duty of care in the human services: Mishaps, misdeeds and the law, Cambridge, UK: Cambridge University Press. Lunney, M., & Oliphant, K., 2013. Tort law: Text and materials, Oxford, United Kingdom : Oxford University Press. Monahan, G., & Carr-Gregg, S., 2007. Essential contract law, New York: Routledge-Cavendish. Pitel, S., Neyers, J. W., & Chamberlain, E., 2013. Tort Law: Challenging Orthodoxy, Oxford: Hart Publishing Limited. Stewart, P., & Stuhmcke, A., 2009. Australian principles of tort law, Sydney: Federation Press. Stuhmcke, A., 2001. Australian Essential Tort Law, London: Routledge Cavendish Australia. Willmott, L., Christensen, S., & Butler, D. A., 2005. Contract law. South Melbourne: Oxford University Press. Read More